Philip A. Butler – Long Island Land Use and Zoninghttps://www.lilanduseandzoning.com
Mon, 09 Sep 2019 15:20:55 +0000en-UShourly1https://wordpress.org/?v=4.9.11https://lilanduseandzoning.lexblogplatform.com/wp-content/uploads/sites/128/2017/04/cropped-cropped-favicon-32x32.pngPhilip A. Butler – Long Island Land Use and Zoninghttps://www.lilanduseandzoning.com
3232Fourth Department: Interest in Architecture and Historic Preservation Not Sufficient to Confer Standing Under SEQRAhttps://www.lilanduseandzoning.com/2019/09/03/fourth-department-interest-in-architecture-and-historic-preservation-not-sufficient-to-confer-standing-under-seqra/
https://www.lilanduseandzoning.com/2019/09/03/fourth-department-interest-in-architecture-and-historic-preservation-not-sufficient-to-confer-standing-under-seqra/#respondTue, 03 Sep 2019 14:00:07 +0000https://www.lilanduseandzoning.com/?p=19769In Schmidt v. City of Buffalo Planning Bd., 174 A.D.3d 1413 (4th Dept., July 31, 2019), the petitioner, Terrence Robinson, filed suit to prevent the demolition of an architecturally significant apartment complex, claiming that the City Planning Board failed to comply with the State Environmental Quality Review Act (SEQRA) when it adopted a negative declaration of environmental significance on an … Continue Reading ]]>In Schmidt v. City of Buffalo Planning Bd., 174 A.D.3d 1413 (4th Dept., July 31, 2019), the petitioner, Terrence Robinson, filed suit to prevent the demolition of an architecturally significant apartment complex, claiming that the City Planning Board failed to comply with the State Environmental Quality Review Act (SEQRA) when it adopted a negative declaration of environmental significance on an application to redevelop the site. The appellate court affirmed the lower court’s order and judgment, dismissing Mr. Robinson’s claims for lack of standing.
Buffalo City Hall

In its opinion, the Court reminded that “[t]hose seeking to raise SEQRA challenges must establish both an environmental injury that is in some way different from that of the public at large, and … that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA.” 174 A.D.3d at 1413 (internal citations and quotations omitted). Petitioner, an architecture enthusiast, claimed he would suffer sufficient injury to confer standing upon him because he had a specific interest in visiting and photographing the apartments, and in historic preservation generally. The appellate court rejected petitioner’s argument, writing that “[i]nterest and injury are not synonymous … A general — or even special — nterest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances of the case. Here, petitioner’s appreciation for historical and architectural sites does not rise to the level of injury different from that of the public at large for standing purposes.” Id.

The injuries Mr. Robinson alleged in support of his standing argument are reminiscent of those successfully advanced by the petitioners in Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297 (2009). There, the individual petitioners were members of an organization dedicated to the use and appreciation of the Albany Pine Bush, an environmentally significant region in Albany, New York. The petitioners sued the City’s Common Council to prevent a hotel development near the Butterfly Hill area of the Pine Bush, a known habitat of the endangered Karner blue butterfly and other protected and endangered species. The New York Court of Appeals ruled that the individual petitioners demonstrated sufficient injury for standing under SEQRA because they use the Pine Bush for recreation, study, and to enjoy the unique habitat there and, therefore, would be harmed in a manner different from the public at large if that ecosystem were disrupted by the proposed development. 13 N.Y.3d at 921-22.

The Court of Appeals decision in Save the Pine Bush, Inc., is not discussed or cited in the Fourth Department’s opinion in Schmidt. Nonetheless, the differing outcomes on the issue of standing beg the question: When does a petitioner’s “interest” in an environmental resource cross the threshold from a mere interest into something sufficient to confer standing? Similar to the petitioners in Save the Pine Bush, whose injury derived from their interest in visiting and studying an environmentally significant area, Mr. Robinson’s alleged injury arose from his interest in visiting and photographing an architecturally significant apartment building. For admirers of great architecture, is the loss of an architecturally significant building not the same as the extinction of an endangered species for a lover of nature?

A copy of the Court’s decision can be accessed on the Fourth Department’s website: http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2019/07-31-19/alpha.shtm.

]]>https://www.lilanduseandzoning.com/2019/09/03/fourth-department-interest-in-architecture-and-historic-preservation-not-sufficient-to-confer-standing-under-seqra/feed/0Andros Patent Studied in Dispute Over Oyster Bay Boundary: This Clam Is Your Clam, This Clam Is My Clamhttps://www.lilanduseandzoning.com/2019/05/13/andros-patent-studied-in-dispute-over-oyster-bay-boundary-this-clam-is-your-clam-this-clam-is-my-clam/
https://www.lilanduseandzoning.com/2019/05/13/andros-patent-studied-in-dispute-over-oyster-bay-boundary-this-clam-is-your-clam-this-clam-is-my-clam/#respondMon, 13 May 2019 10:26:44 +0000https://www.lilanduseandzoning.com/?p=19502Here’s one for the history buffs! A quiet feud between the State of New York and the Town of Oyster Bay over the Town’s underwater boundary has been resolved (for now) in Murphy v. Town of Oyster Bay, — N.Y.S.3d —-, 2019 WL 1646259 (N.Y.A.D. 2 Dept.), 2019 N.Y. Slip Op. 02887.

Here’s one for the history buffs! A quiet feud between the State of New York and the Town of Oyster Bay over the Town’s underwater boundary has been resolved (for now) in Murphy v. Town of Oyster Bay, — N.Y.S.3d —-, 2019 WL 1646259 (N.Y.A.D. 2 Dept.), 2019 N.Y. Slip Op. 02887.

On January 1, 2010, the Plaintiff, Brian Murphy, was harvesting shellfish in waters near the maritime border between the Long Island Sound and the waters of Oyster Bay. At the time, Mr. Murphy possessed a license from the State of New York granting him permission to harvest shellfish from marine waters of the State.

Unbeknownst to Mr. Murphy, the State and the Town of Oyster Bay have disagreed on the precise locations of the lines separating the underwater lands belonging to the Town from the portions of the Long Island Sound that are owned by the State of New York. On January 1st, Town of Oyster Bay officials discovered Mr. Murphy in the midst of his harvesting and promptly issued him a citation for shellfishing without a Town permit. Mr. Murphy received a second citation from the Town two months later.

In August, 2010, Mr. Murphy filed a declaratory judgment action seeking a judicial decree that the Town’s citations against him were invalid because he was lawfully shellfishing in the Long Island Sound. The Town and the State were both named as defendants.

In its defense, the Town evoked the 1677 patent issued by Edmond Andros, Governor General under James Duke of York, which established the general description of the boundaries of the Town of Oyster Bay (the “Andros Patent”). Citing the Andros Patent, the Town claimed title to all underwater lands south of a line drawn between Oak Neck Point in Oyster Bay and Lloyd Point on Lloyd’s Neck in Huntington. In response, the State claimed that the Town boundary lay farther to the south on a line drawn between Rocky Point in Oyster Bay and Whitewood Point on Lloyd’s Neck in Huntington. There was no dispute among the parties that Mr. Murphy was harvesting shellfish in the area between these two imaginary lines.

The Town and the State each filed motions for summary judgment based upon documentary evidence, including the Andros Patent, and governing principles of maritime and international law, and federal versus state sovereignty. The trial court (Hon. Stephen A. Bucaria, J.) ruled for the State. SeeMurphy v. The Town of Oyster Bay, Short Form Order, Sup. Ct. Nassau Co. Index No. 00624/12, Motion Seq. #002, 003, 004 (Jan. 12, 2016).

The lower court observed that while the Andros Patent describes the Town’s northern boundary as the Long Island Sound it never “expressly define[d] the boundary between the Sound and the Bay.” Consequently, the precise location of the Town’s northern maritime border was left unresolved. Id. at p. 3.

The lower court’s opinion touches upon several interesting concepts which deserve a full read of the written decision. For purposes of this post, the Court’s holding provides sufficient explanation. Judge Bucaria wrote:

Under New York State law, crown patents, as distinguished from Royal Colonial Charters, are to be strictly construed in favor of the sovereign, and against the patentee. Similarly, under federal law, states enjoy a presumption of title to submerged lands beneath inland navigable waters within their boundaries. Since New York State has a presumption of title to submerged lands, the burden of proof … is on the Town.

Neither the State nor the Town offers any documents contemporaneous with the Andros Patent, specifying the extent of the underwater land which Andros intended to convey. Thus, the boundary between the Sound and the Bay must be determined not by reference to principles of international law, or the Town’s history of control, but by the nature and situation of the land and the circumstances surrounding the Andros patent. … As early as Rogers v Jones, supra, in 1828, it was assumed by New York’s highest court that the boundary between Oyster Bay and Long Island Sound was around Lloyd’s Neck. Based upon the nautical charts … submitted to the court, as well as the limitations upon Andros’ authority to grant sovereign status, the State has established prima facie that the boundary between the Bay and the Sound is the line connecting Rocky Point to Whitewood Point on Lloyd’s Neck. In view of the Town’s failure to offer evidence that Andros intended another boundary line, the court must render judgment for the State.

On appeal, the Second Department affirmed Judge Bucaria’s decision. Finding that the Andros Patent is indeed ambiguous with respect to the precise dividing line between the Sound and the Bay, the Court resorted to the extrinsic evidence presented in the record. The Court opined:

The record in this case demonstrates that the State’s proposed boundary line is the only fair interpretation of the Andros Patent. Here … the record contains no factual matter that might support a different conclusion. For example, the parties submitted no evidence showing some different historical understanding of Oyster Bay or bays more generally, or personal accounts of mariners or other witnesses that, if credited, might support the Town’s proposed headlands. The record that the parties opted to compile in this case simply does not permit more than one inference as to the appropriate boundary line. Thus … the Supreme Court appropriately resolved the dispute as a matter of law, and we agree with the court’s declaration that the boundary line between Oyster Bay and Long Island Sound is the line running east from Rocky Point in Oyster Bay to Whitewood Point on Lloyd’s Neck, and that the State owns all of the underwater lands north of that line.

Murphy v. Town of Oyster Bay, et al., 2019 WL 1646259 at *2.

The development in Murphy is an interesting one, as is the unassuming circumstances from which the litigation arose. But whether the courts’ decision will last is yet to be determined. The Town may yet seek to appeal the Appellate Division’s decision. Alternatively, it could petition the State legislature to change the location of the boundary set by the courts. The battle for the bay may not be done.

Copies of the decisions can be accessed free of charge on the Appellate Division, Second Department website, http://www.courts.state.ny.us/courts/ad2/handdowns.shtml, and the New York State Unified Court System website, https://iapps.courts.state.ny.us/webcivil/FCASSearch (Index Search: 00624/2012).

]]>https://www.lilanduseandzoning.com/2019/05/13/andros-patent-studied-in-dispute-over-oyster-bay-boundary-this-clam-is-your-clam-this-clam-is-my-clam/feed/0The Uncertain Future of the E-Cigarette Industry in New Yorkhttps://www.lilanduseandzoning.com/2019/03/18/the-uncertain-future-of-the-e-cigarette-industry-in-new-york/
https://www.lilanduseandzoning.com/2019/03/18/the-uncertain-future-of-the-e-cigarette-industry-in-new-york/#respondMon, 18 Mar 2019 10:00:54 +0000https://www.lilanduseandzoning.com/?p=19369E-cigarettes and vaping have received a very mixed reception in New York. While the multiplying number of vape shops and booming e-cigarette sales would suggest a surefire rise for the industry in our State, growing opposition from the public and multiple levels of government could nip the industry in the bud.

]]>E-cigarettes and vaping have received a very mixed reception in New York. While the multiplying number of vape shops and booming e-cigarette sales would suggest a surefire rise for the industry in our State, growing opposition from the public and multiple levels of government could nip the industry in the bud.

In 2017, Governor Cuomo signed into law an amendment to the Clean Indoor Air Act prohibiting the use of e-cigarettes and vaping products in any setting where the smoking of traditional tobacco products is prohibited. See Public Health Law §§ 1399-N, 1399-O. This includes most indoor settings as well as certain outdoor, public and work places. Today – in response to growing public concern over health effects and teenage addiction to vaping products – the State is now considering a ban that would strictly regulate all but a few of the available “vape juice” flavors (particularly, kid-friendly flavors like bubblegum, breakfast cereal, and cotton candy) in an effort to make vaping less attractive to young consumers. See, Brodsky, Robert “LI vape shops would close, some say, if NY bans flavored e-cigarettes”, Newsday, Nov. 9, 2018.

At the local level, a growing number of Counties across the State, including Nassau and Suffolk Counties, have raised the minimum age for the purchase of tobacco products (including e-cigarettes) from 18 to 21. The Town of North Hempstead also recently joined that list. See Town of North Hempstead Code § 54-1 (2017). Certain counties, like Suffolk County, are also currently weighing options for enacting their own restrictions on the sale of flavored vaping products. See Tyrell, Joie “Rally backs bill to limit flavored e-cigarettes in Suffolk County” Newsday, December 13, 2018.

Based on these trends, it is unsurprising that government at the most local level, towns and villages, are also utilizing their police powers to join in the fight against e-cigarettes and vaping. On Long Island alone, numerous towns and villages have enacted local controls on the use of vaping products and the locations where they may be sold. Some municipalities have acted in a limited sphere by prohibiting the use of e-cigarettes and vaping products on or in the vicinity of public property (i.e. parks and government buildings) and in proximity to schools and places of worship. See Town of Hempstead Code § 78-3.2 (2018); Village of East Hampton Code § 211-17 (2018). Others have turned to their zoning power to remove establishments selling e-cigarettes and vaping products from their downtowns and commercial centers. See Town of Babylon Code §§ 213-129.1, 213-166, 213-166.1, 213-490 (2018); Town of Islip Code § 68-341.1 (classifying “vape lounges” and “vape shops” as adult uses and permitted only in the Industrial 1 District) (2016); Town of Smithtown Code § 322-30.5 (2018) (prohibiting vape stores and lounges within 1,500 feet of parks, playgrounds, schools and religious uses); Village of Floral Park Code § 99-18 (2018) (classifying vape shops as adult uses permitted only in the B-3 Business District). One village has enacted an outright ban on the sale of vaping products in its business districts. See Village of Lindenhurst Code § 193-92 (2017).

Proponents and purveyors of e-cigarettes and vaping products are decrying the mounting regulations governing the industry and some are now attempting to push back. See Rowland, Matt “Using ‘family-friendly’ excuse, Lindenhurst, NY wants to ban vape shops” Vapes.com, October 4, 2017. A quiet town in suburban Westchester County could be the test case on whether a local zoning ordinance in our State aimed at e-cigarettes and vaping products is a valid exercise of a local government’s land use power.

In May, 2018, the Town of Bedford, New York, adopted Local Law No. 5 of 2018, which enacted 125-29.8 of the Town Code, regulating “electronic nicotine delivery systems”. Citing public health and safety concerns, the law confines “vape shops” to the Town’s Roadside Business (RB) Zoning District, which is situated in one area of the Town. The law goes one step further to prohibit the sale of electronic nicotine delivery systems (i.e. e-cigarettes and vape pens) at any business outside the RB Zoning District, regardless of the principle use of the property. See Town of Bedford Code § 125-29.8(C)(3) (2018).

It has since been reported that a group of gas station owners and operators in the Town of Bedford (located outside the RB Zoning District) have filed suit against the Town, challenging the legality of the 2018 zoning amendment. See McKinney, Michael P. “Several gas businesses sue Bedford over law restricting e-cigarette sales” Rockland/Westchester Journal News, December 19, 2018. If lawsuit goes forward, it will be one of the first (if not the first) challenging a local zoning enactment targeting e-cigarettes and vaping. The outcome of the action will, therefore, be of tremendous interest to supporters and opponents of vaping alike.

At the end of the day, e-cigarettes and vaping products are already in the market place and have proven themselves to be profitable. Therefore, in the opinion of this writer, it is unlikely that they will be banned in New York completely. After all, traditional cigarettes and tobacco products continue to be sold in convenience stores and other businesses throughout the State despite the now widely known and accepted health problems they cause. And like “Big Tobacco”, the purveyors of this generation’s e-cigarettes and vaping products may simply need to come to terms with strict regulatory requirements and negative social opinion as the price of doing business in New York (and elsewhere). We will all just have to wait and see.

Long Island’s potable water supply comes from one place: aquifers. And as the population of Long Island continues to grow steadily upward, this vital subterranean resource faces both a growing demand and a growing threat of pollution from human-driven sources. Consequently, the issues of groundwater quality and groundwater protection have been rising to the top of the list of concerns … Continue Reading

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Long Island’s potable water supply comes from one place: aquifers. And as the population of Long Island continues to grow steadily upward, this vital subterranean resource faces both a growing demand and a growing threat of pollution from human-driven sources. Consequently, the issues of groundwater quality and groundwater protection have been rising to the top of the list of concerns for many Long Island communities for some time.

At a recent meeting of the Shelter Island Town Board, the problem of groundwater pollution was once again up for discussion. Shelter Island, unlike some other Long Island communities, does not have public water. It also does not have public sewers. Accordingly, its residents rely on private wells and septic systems for the water supply and wastewater disposal. This reality makes Shelter Island residents particularly vulnerable to issues that arise when pollutants from septic systems—namely, nitrogen—find their way into the groundwater.

In 2017, Shelter Island’s Town Board created a rebate program to incentivize owners of residential property to voluntarily replace old septic systems with new low-nitrogen septic systems. Intended to supplement Suffolk County’s septic system grant program, the Town rebate is funded by the Town’s Community Preservation Fund and offers residential-property owners reimbursement of up to $15,000 for eligible septic system upgrades. Other East End towns, such as the Town of Southampton, have implemented similar programs.

Perhaps dissatisfied with the rate of response to its rebate program, the Town is now considering a new idea to speed up the installation of low-nitrogen septic systems. During their work session on December 11, 2018, Town Board members discussed the possibility of legislation that would require a low-nitrogen septic system to be installed on any improved residential real property in the Town that changes owners and does not already have a low-nitrogen system in place. The Board members also discussed the possibility of extending the Town’s rebate program to help fund those projects.

As of yet, there is no actual bill before the Town Board for its consideration, and as was made clear during its discussion on December 11th, the proposed legislation raises a number of questions that will need to be addressed:

Would such a mandate be lawful?

Some could argue that the legislation would impose an illegal restriction on a property owner’s ability to convey title to their property.

What title transfers would trigger the obligation to install a low-nitrogen septic system?

For example, in instances of inheritance, the law could impose an unexpected and potentially unaffordable financial obligation on family members.

Would a long-term lease trigger the need for an upgrade?

In the event of a sale, who is obligated to fund and perform the system upgrade as between the buyer and the seller?

The requirement to install a new septic system in conjunction with a sale will likely become a bargaining point during contract negotiations.

Must an upgrade be completed before or after title changes hands?

If before, the law could result in the delay of certain transfers while the responsible party pursues permits, grants/rebates, and completion of the project.

If after, how will the Town ensure that the upgrade is completed, and what will it do if it is not?

How will the Town ensure that transferors and transferees are aware of the law and its requirements in advance of the transfer of title?

What happens when unknowing parties conclude a transaction that would have required a new system to be installed?

Whatever the answer to these questions will be, the proposed legislation, if enacted, would represent a proactive and unique approach to combatting groundwater pollution on Long Island. This office will be monitoring the progress of the law if and when the legislation makes its way before the Board.

]]>https://www.lilanduseandzoning.com/2019/01/28/east-end-town-considering-novel-approach-to-speed-up-groundwater-protection-efforts/feed/0New FCC Decision Tips in Favor of Service Providers on Small Cell Wireless Projectshttps://www.lilanduseandzoning.com/2018/12/03/new-fcc-decision-tips-in-favor-of-service-providers-on-small-cell-wireless-projects/
https://www.lilanduseandzoning.com/2018/12/03/new-fcc-decision-tips-in-favor-of-service-providers-on-small-cell-wireless-projects/#respondMon, 03 Dec 2018 11:00:16 +0000https://www.lilanduseandzoning.com/?p=19105On September 26, 2018, the Federal Communications Commission (FCC) adopted its Declaratory Ruling and Third Report and Order (“Declaratory Ruling and Order”) enacting significant regulatory changes that will impact local control over the deployment of wireless infrastructure. Aimed at streamlining the nationwide deployment of 5G wireless—the next generation of wireless technology—the Declaratory Ruling and Order contains several features that will … Continue Reading ]]>On September 26, 2018, the Federal Communications Commission (FCC) adopted its Declaratory Ruling and Third Report and Order (“Declaratory Ruling and Order”) enacting significant regulatory changes that will impact local control over the deployment of wireless infrastructure. Aimed at streamlining the nationwide deployment of 5G wireless—the next generation of wireless technology—the Declaratory Ruling and Order contains several features that will have a direct impact on the validity of certain local code provisions and on the processes used by local boards when hearing and deciding small cell wireless applications. The following are some of the key provisions of the Declaratory Ruling and Order:

Fees. Small cell wireless systems, including Distributed Antenna Systems (DAS), are a form of wireless equipment commonly deployed on utility and light poles along streets and other public right-of-ways. These are the boxes (cabinets), cylinders and antennae that can often be seen at or near the top of host poles.

In order to access the right-of-way to install, operate and maintain small cell systems, service providers and wireless infrastructure developers typically offer municipalities annualized compensation pursuant to certain terms and conditions laid out in a written right-of-way use agreement. Some providers have offered a flat annual fee per location, while others have offered a set percentage of annual profits based on a specified formula. Some have offered both. In some respects, these right-of-way use agreements have operated as rental arrangements.

Under the Declaratory Ruling and Order, the fees municipalities charge for access to their right-of-ways must bear a direct relationship to the “actual and reasonable cost” to the municipality in: (a) maintaining the right-of-way; (b) maintaining the host structure(s) in the right-of-way; or (c) processing an application or permit seeking to deploy in the right-of-way. (¶72).* Fee arrangements which seek to simply maximize a municipality’s profit without any correlation to a demonstrable cost could be deemed illegal barriers to access. (¶73). The Declaratory Ruling and Order goes one step further on this subject by providing a set of fees and rates the FCC views as presumptively consistent with the Federal Telecommunications Act. (¶79).

Aesthetics. The proliferation of small cell systems in public right-of-ways has resulted in frequent complaints from local officials and residents about negative impacts on community character and aesthetics. In response, many municipalities have enacted local zoning code provisions that include aesthetic standards for small cell installations. Examples of such standards include the requirement that small cell installations be placed within “stealth” poles or camouflaged, and that equipment be installed in underground vaults whenever possible (a/k/a undergrounding).

The Declaratory Ruling and Order states that, going forward, aesthetic standards affecting small cell deployments are permissible only if they are: (1) reasonable; (2) no more burdensome than those applied to other types of infrastructure deployments; and (3) objective and published in advance. (¶86). The Declaratory Ruling and Order expounds on its meaning of “reasonable” as “technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out-of-character deployments”. (¶87). Its use of “objective” describes standards that are “clearly-defined and ascertainable” and “applied in a principled manner”. (¶88). What is meant by the second criterion—that aesthetic requirements be “no more burdensome than those applied to other types of infrastructure deployments”—is somewhat unclear, particularly so if one attempts to compare the characteristics of small cell wireless installations to those of traditional “utilities”, such as water, sewer, electric, and even cable.

What is clear from this newly minted test is that locally-enacted aesthetic standards will be facing heightened legal scrutiny, and standards that would render a deployment cost-prohibitive or ineffective are most likely to be viewed as an effective prohibition on service. The Declaratory Ruling and Order calls out, specifically, overly specific design and camouflaging requirements, excessive spacing requirements, and mandatory undergrounding requirements as potentially impermissible aesthetic standards. (¶¶84, 90-91).

Shot Clocks. The Declaratory Ruling and Order takes two notable actions with respect to the shot clocks that apply to local decisions on telecommunications projects. First, it purports to codify the existing 90-day and 150-day shot clocks established in 2009 for non-small cell telecommunications projects. Second, it establishes two new shot clocks which apply to local decisions on small cell wireless applications. Under the new shot clocks, a government agency considering a small cell wireless application has 60 days to take action on a complete application for an installation on an existing structure and 90 days to take action on a complete application for an installation on a new structure. (¶105). A batched application (i.e. a single application covering multiple sites on both existing and new structures) is subject to the longer 90-day shot clock. (¶114).

Remedies for Providers. The Declaratory Ruling and Order provides teeth for the new shot clocks by articulating a new theory for legal recourse in the event a government agency fails to act on a small cell wireless application in a timely manner. Under existing FCC regulations, a wireless applicant may seek legal remedy in court if the government agency considering its application fails to act within the time prescribed under the shot clocks. Under the Declaratory Ruling and Order, such a failure is not only a “failure to act” but is also presumptively an “unlawful prohibition on service” by the government agency. (¶¶116-120). The addition of this presumption places a new burden on the defending agency to demonstrate that its failure to act within the time allowed under the applicable shot clock was reasonable and that it did not materially limit or inhibit the applicant from introducing or improving service.

The full Declaratory Ruling and Third Report and Order contains in depth explanations and the reasoning behind each of the regulatory changes briefly addressed above. It further contains clarifications on when shot clocks start, pause, and restart, and when certain applications qualify as “collocations” for purposes of determining which shot clock applies to a given application.

A summary of the Declaratory Ruling and Order was published in the Federal Register on October 15, 2018. The new rules will therefore take effect on January 14, 2019 (90 days after publication).

If you have any questions concerning the subject of this post, please feel free to contact Philip at pbutler@farrellfritz.com.

*The ¶ symbol followed by a number refers to the paragraph with the same number in the full Declaratory Ruling and Third Report and Order.

]]>https://www.lilanduseandzoning.com/2018/12/03/new-fcc-decision-tips-in-favor-of-service-providers-on-small-cell-wireless-projects/feed/0Third Department Affirms “Neg. Dec.” Do-Over in Village of Ballston Spa v. City of Saratoga Springshttps://www.lilanduseandzoning.com/2018/09/24/third-department-affirms-neg-dec-do-over-in-village-of-ballston-spa-v-city-of-saratoga-springs/
https://www.lilanduseandzoning.com/2018/09/24/third-department-affirms-neg-dec-do-over-in-village-of-ballston-spa-v-city-of-saratoga-springs/#respondMon, 24 Sep 2018 10:00:18 +0000https://www.lilanduseandzoning.com/?p=18938In SEQRA parlance, a “Negative Declaration of Environmental Significance”, or “Neg. Dec.”, is a lead agency’s finding that the proposed Type I or Unlisted Action under review will not result in any significant adverse environmental impacts. An applicant whose project receives a Neg. Dec. is spared the (often) considerable time and expense of preparing an environmental impact statement (EIS) and … Continue Reading ]]>In SEQRA parlance, a “Negative Declaration of Environmental Significance”, or “Neg. Dec.”, is a lead agency’s finding that the proposed Type I or Unlisted Action under review will not result in any significant adverse environmental impacts. An applicant whose project receives a Neg. Dec. is spared the (often) considerable time and expense of preparing an environmental impact statement (EIS) and the gauntlet of procedural steps that follow a positive declaration. However, a Neg. Dec. must be accompanied by a “reasoned elaboration” of the bases for the determination along with references to supporting documentation in the record. A Neg. Dec. which lacks a reasoned elaboration is invalid on its face, see, e.g., New York City Coal. to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337 (2003), and reviewing courts will not conduct an independent search of the record to discern the lead agency’s rationale and salvage the determination. See, e.g., Matter of Healy, 2018 N.Y. Slip Op. 28261, — N.Y.S.3d —- (Sup. Ct. Nassau Co. 2018) (wherein the court commended the lead agency on a thorough SEQRA review, but was constrained nonetheless to set aside the agency’s negative declaration because it did not contain a written reasoned elaboration).

In Vill. of Ballston Spa v. City of Saratoga Springs, 163 A.D.3d 1220, — N.Y.S.3d —- (Decided July 12, 2018), the Third Department struck a careful balance between SEQRA’s rigid “strict compliance” standard and consideration for practical mistakes that sometimes occur when a lead agency moves through the SEQRA process on a particular application. In 2017, the City of Saratoga Springs sought to condemn a stretch of land adjacent to a heavily-trafficked road for the creation of a new pedestrian/bicycle trail. The City Council, as lead agency, classified the project as a Type I Action and completed parts 1 and 2 of a full Environmental Assessment Form (EAF).

Eventually, the City Council adopted a resolution finding that the project would not result in any significant adverse environmental impacts and issued a negative declaration. It was then brought to the Council’s attention that its resolution did not include information explaining the basis for the determination. Two months later, the Council adopted a supplemental resolution reaffirming its Neg. Dec. for the project. This time, the resolution included specific information addressing each potential environmental impact identified in part 2 of the EAF and the Council’s rationale for why those issues would not result in any significant adverse environmental impacts. Opponents of the project challenged the Neg. Dec. contending that the supplemental resolution was not a permitted action under SEQRA.

On Appeal, the Appellate Division found that the City complied with SEQRA’s procedural requirements. In doing so, the Court expressly rejected the petitioners’ argument that the supplemental resolution would have been proper only under one of the enumerated situations set forth in 6 NYCRR 617.7(e) and (f) of the SEQRA regulations, which govern the amendment and rescission of negative declarations. The Court held that while 6 NYCRR 617.7(e) and (f) dictate a lead agency’s response to certain developments following the adoption of a Neg. Dec., those provisions are not exhaustive and do not preclude a lead agency from correcting a mistake in process under other circumstances.

Of particular relevance for the Court were the facts that the Council had conducted an earnest review of the relevant environmental issues; held another public meeting to discuss the contents of the supplemental resolution, and took additional procedural steps before reaffirming its negative declaration for the project. The supplemental resolution was also adopted before the Council took final action to approve the project. The Court observed that, as a practical matter, nullification of the Neg. Dec. would only have resulted in a redundant SEQRA process that would have undoubtedly reached the same conclusion. Thus, the Court ruled that the supplemental resolution was a proper means to correct the omission of the reasoned elaboration from the original Neg. Dec.

The Third Department’s decision in Ballston Spa lends itself to the proposition that a lead agency can, at times, correct the fatal defect of omitting a reasoned elaboration from a negative declaration. This is not to say, however, that any writing presented after the adoption of a Neg. Dec. will be sufficient. In Matter of Dawley v. Whitetail 414, LLC, 130 A.D.3d 1570, 14 N.Y.S.3d 854 (4th Dept. 2015) (cited in contrast in Ballston Spa), the Fourth Department ruled that a written attachment presented after the adoption of a negative declaration could not serve as a reasoned elaboration where the respondent town board, serving as the lead agency, never reviewed the attachment and never voted to have it included as a supplement to its negative declaration. See, also, Rochester Eastside Residents for Appropriate Dev., Inc. v. City of Rochester, 150 A.D.3d 1678, 54 N.Y.S.3d 484 (4th Dept. 2017) (also cited in Ballston Spa) holding that a document containing the purported reasoning for the lead agency’s determination, prepared subsequent to the issuance of the negative, did not fulfill the statutory mandate. It is therefore uncertain how another court might rule if presented with a similar set of facts. Careful and thorough drafting continues to be the best hope of insulating a negative declaration from legal challenge.

If you have questions regarding SEQRA regulations or procedure, please contact me at pbutler@farrellfritz.com.

]]>https://www.lilanduseandzoning.com/2018/09/24/third-department-affirms-neg-dec-do-over-in-village-of-ballston-spa-v-city-of-saratoga-springs/feed/0Long-Awaited SEQRA Amendments Are Finally Here: So What Are They, and What Do They Mean?https://www.lilanduseandzoning.com/2018/07/30/long-awaited-seqra-amendments-are-finally-here-so-what-are-they-and-what-do-they-mean/
https://www.lilanduseandzoning.com/2018/07/30/long-awaited-seqra-amendments-are-finally-here-so-what-are-they-and-what-do-they-mean/#respondMon, 30 Jul 2018 14:00:10 +0000https://www.lilanduseandzoning.com/?p=18812After six years and vigorous public comment, the New York State Department of Environmental Conservation (DEC) has adopted substantive amendments to the implementing regulations of the State Environmental Quality Review Act (SEQRA). The new regulations take effect on January 1, 2019 and will apply to all pending and future actions for which a determination of significance has not been made … Continue Reading ]]>After six years and vigorous public comment, the New York State Department of Environmental Conservation (DEC) has adopted substantive amendments to the implementing regulations of the State Environmental Quality Review Act (SEQRA). The new regulations take effect on January 1, 2019 and will apply to all pending and future actions for which a determination of significance has not been made prior to the effective date.

The changes to the SEQRA regulations affect both substantive and procedural aspects of the SEQRA process. Of particular note are the changes to: the list of Type I Actions (projects that carry a strong presumption of significant adverse environmental impact and typically result in the preparation of an Environmental Impact Statement [EIS]); the List of Type II Actions (projects that the DEC has pre-determined to not result in significant adverse environmental impacts and are exempt from environmental review); “scoping” (the procedural step which identifies the adverse environmental impacts to be studied in an EIS, and which will now be a mandatory step in the SEQRA process), and clarification on the requirements for preparing a Draft EIS (DEIS).

The amendments affecting Type I Actions (6 NYCRR §617.4) can be described generally as altering the thresholds which trigger certain Type I designations.

In cities, towns and villages having a population of 150,000 persons or less, the following are now Type I Actions:

The addition of 200 units or more that will connect to existing community or public water or sewerage systems. The threshold was previously 250 units.

The addition of parking for 500 vehicles or more.

In cities, towns and villages having a population of 150,001 persons or more, the following are now Type I Actions:

The addition of 500 units or more that will connect to existing community or public water or sewerage systems. The threshold was previously 1,000 units.

The addition of parking for 1,000 vehicles or more.

Long Island communities will be particularly interested in both of these thresholds. While the island is home to nearly 100 villages that will be subject to the lower threshold applied to municipalities of 150,000 persons or less, it is also the home to the Towns of Babylon, Brookhaven, Hempstead, Huntington, Islip, and Oyster Bay, all of which have populations in excess of 150,001 persons, according to recent census data. Projects in those town which have a large residential component (and are located outside of incorporated villages) will need to be mindful of the 500-unit threshold.

The amended SEQRA regulations preserve a limitation on the Type I designation for the creation of new residential units. As in the old SEQRA regulations, the number of new units alone is not the only factor in determining whether a Type I designation is appropriate. The project must also tie in to an existing community or public water or sewerage system. Thus, a project that proposes its own water and sewerage facilities will not necessarily trigger a Type I designation, even if the number of proposed units exceeds the numeric threshold.

Any Unlisted Action which exceeds 25% of any Type I threshold and which is located wholly or partially in, or contiguous to, a place or district that has been listed or has been determined to be eligible for listing on either the National or State Register of Historic Places is a Type I Action. This revision is something of a double-edged sword for developers in that while a project will no longer be Type I solely because of its proximity to a historic site—because the project must now also exceed 25% of some other Type I threshold under §617.4—the requirement that “eligible” sites also be considered increases the possibility that a project is located near a site capable of triggering a Type I designation.

The amendments affecting Type II Actions (6 NYCRR §617.5) add several new categories of actions that are exempt from environmental review going forward. They include:

Retrofitting an existing structure and its appurtenant areas with green infrastructure. While the phrase “green infrastructure” might evoke any number of green practices or technologies that have come to the forefront of eco-conscious design, the revised SEQRA regulations narrowly define the term as “practices that manage storm water through infiltration, evapo-transpiration and reuse…” The definition then includes an exclusive list of the specific practices that constitute “green infrastructure” for purposes of Type II exemption. Thus, the exemption is narrower than it would appear at first blush.

Installation of telecommunications cables in existing highway or utility rights of way and utilizing trenchless burial or aerial placement on existing poles. Notably, the exemption is limited to telecommunications “cables” and, therefore, does not include small cells, “nodes” or Distributed Antenna Systems (DAS), which have become prevalent in the telecommunications industry. Prior iterations of the Type II amendments did include co-location of telecommunications antennas as a new exempt category; however, that exemption was removed in response to public comment.

Installation of a solar array involving 25 acres or less of physical alteration and located on: a closed landfill; a commercial or industrial brownfield site or Environmental Restoration Project site that has received a certificate of completion; an inactive hazardous waste site (under certain conditions); or already disturbed area located within a publicly-owned wastewater treatment facility or an industrial zoned site.

Installation of a solar array on any existing structure, provided the structure is not listed on the Federal or State Register of Historic Places; determined to be eligible for listing on the historic registers; or within a district that has either been listed or determined to be eligible to be listed on the historic registers.

Reuse of a residential or commercial structure, or a mixed use residential and commercial structure, for a use which is permitted under applicable zoning, including uses by special permit, provided the reuse does not trigger any Type I threshold. Critics of this particular exemption argued that local zoning laws are often outdated; and as a result, the exemption may prevent environmental review of a use that, while legally permissible, is nonetheless out of touch with the present character of the district in which it is located. The DEC has countered that in almost all situations, a given project will be subject to some form of discretionary review, during which impacts of concern can be vetted and mitigated. Additionally, because the exemption encourages the reuse of structures, it will also reduce the use of virgin building materials and the creation of construction and demolition debris, which are deposited in landfills.

Under the current regulations, Scoping(6 NYCRR §617.8) is an optional step in the SEQRA process. However, as of January 1, 2019, scoping will be mandatory for “all” EISs, except for Supplement EISs prepared pursuant to 6 NYCRR §617.9(a)(7). Incidentally, lead agencies will no longer have the option of accepting a proposed DEIS in lieu of an environmental assessment form because submission of a DEIS must now be preceded by a scoping session and the lead agency’s acceptance of a final, written scoping document. Opponents of this change have argued that, for some projects receiving a positive declaration, the environmental assessment forms will be sufficient to identify the environmental impacts requiring study in an EIS. Therefore, for those projects, mandatory scoping prior to preparation of a DEIS will result in unnecessary delay of the SEQRA process and added expense for the project sponsor.

The amendments affecting DEIS preparation (6 NYCRR §617.9) seek to clarify the requirements for a complete DEIS and avoid undue delay of the SEQRA process while the sponsor, lead agency and public debate the adequacy of a DEIS’ contents. The regulations provide that a DEIS is complete when it: (1) meets the requirements of the written final scope and sections 617.8(g) and 617.9(b) of the SEQRA regulations; and (2) “provides the public and involved agencies with the necessary information to evaluate project impacts, alternatives, and mitigation measures.” In addition, the regulations mandate that the completeness of a resubmitted DEIS be evaluated solely based on a list of written deficiencies provided by the lead agency during its review of the prior version of the DEIS (with some exceptions). Time will tell whether these particular amendments will have their desired effect of streamlining the DEIS phase of the SEQRA process. Reasonable minds may yet disagree on whether a DEIS “provides the public and involved agencies with the necessary information to evaluate project impacts, alternatives, and mitigation measures.”

The 2018 SEQRA amendment contains additional changes, including additional Type II categories not discussed here and new publication requirements for SEQRA materials. A complete copy of the 2018 SEQRA amendment and related materials can be found on the DEC website at: https://www.dec.ny.gov/permits/83389.html.